Newscity

Unkind Bud

How legal is medical marijuana in New Mexico?

By Simon McCormack

Jeremy Eaton

On Sept. 4, Leonard French had some unexpected visitors.

When he opened his door, French came face-to-face with Eddy County Sheriff's deputies, who said they wanted to see his marijuana. French, a Malaga, New Mexico, resident who suffers from chronic back pain, showed the deputies his supply and a license from the New Mexico Health Department that allows him to possess medical marijuana. The deputies took French's marijuana and left.

French is now suing the Eddy County Sheriff's department in state district court, and his case has been taken up by the American Civil Liberties Union. "This is nothing short of piracy," says ACLU Staff Attorney Adam Wolf, one of French's lawyers. "Mr. French was not violating the law of the state, and notwithstanding that, the officers seized his property." French is seeking compensatory damages and the lawsuit also asks that state authorities not be allowed to confiscate his marijuana in the future.

The Eddy County Sheriff's Department tells a different story. Chief Deputy Ernest Mendoza says French was in violation of both state and federal law. It is illegal to possess marijuana under federal law, and Mendoza says French had more marijuana than the state allows. "We seized six marijuana plants from Mr. French,” Mendoza says. “That's more than you can have under state law." Mendoza also says French has prior convictions for distributing marijuana.

Under the new medical marijuana law passed by the New Mexico Legislature in 2007, patients who qualify for medical marijuana may have enough cannabis to provide them with a continuous supply for three months. That amount can include seven plants, as long as four of them cannot be cultivated.

Wolf contends his client’s supply of marijuana was well within the amount allowed by the state. According to Wolf, the deputies seized two small plants and three dead sprouts, instead of the six plants Mendoza says were taken. Wolf also says the sheriff's department would not have taken the marijuana if federal authorities hadn’t told them to.

“This is the latest example of the federal government’s interference with legitimate state medical marijuana laws.”

ACLU Staff Attorney Adam Wolf

“This is the latest example of the federal government’s interference with legitimate state medical marijuana laws,” Wolf says. “When the federal government does this, seriously ill patients end up suffering.”

Wolf adds the courts have consistently said local law enforcement should respect state laws, and the federal government should not interfere with state medical marijuana policies.

Instead of pointing a finger at the federal government for French’s predicament, Jim Burleson, the director of the New Mexico Sheriffs’ and Police Association, says the blame rests squarely on state lawmakers and New Mexico’s Health Department. “For the last 200 years, the way it’s worked in this country is that states can enact laws that are as stringent or more stringent, but they can’t be less stringent,” Burleson says. “The medical marijuana act tries to second-guess the federal government, and that puts cops and citizens in a jam.”

Wolf disagrees, saying states have the right to choose whether to criminalize medical marijuana. “The federal government can have its own laws prohibiting marijuana use, but the state, as a sovereign entity, is free to pass its own laws that don’t criminalize the substance for seriously ill people."

Burleson says people may not realize that even though the state says it’s OK to have marijuana, they’re still in violation of federal law. “It’s very clear-cut that the federal government has the right to control substances,” Burleson says. “People get a false sense that state law is going to protect them, and it leaves citizens twisting in the wind.”

After the medical marijuana act was passed, there were questions raised about whether Health Department employees could be prosecuted under federal law for distributing marijuana. This created a problem because, under state law, it’s legal for the more than 100 people who are licensed in New Mexico to possess medical marijuana, but it isn’t legal to buy it. Spokesperson Deborah Busemeyer says the Health Department is working on finalizing a set of regulations that would allow individuals and other entities to legally produce and distribute marijuana under state law. There’s no timetable for when these regulations will be put in place, but Busemeyer says they will not change federal drug policies.

“We’ve been working very carefully and thoughtfully to develop the best program possible,” Busemeyer says. “We're pleased we've been able to serve so many people so they can get relief from their chronic, debilitating conditions.”